Before DUFFY, KNOCH and CASTLE, Circuit Judges.
Defendant-appellant, James Gilbert Glass, jointly with one Emma Johnson, was charged in a two-count indictment with (1) selling heroin in violation of Title 26 U.S.C. § 4704(a), and (2) knowingly receiving etc. narcotics in violation of Title 21 U.S.C. § 174.
After trial by jury, appellant was convicted and sentenced to serve five years on count one and twenty years on count two, the sentences to be served consecutively. On appeal, this Court found that count one failed to state an offense, and the judgment was reversed as to that count. The judgment was affirmed as to count two. 7 Cir., 277 F.2d 566 (1960).
Appellant now appeals from denial of his subsequent motion, submitted pursuant to 28 U.S.C.A. §§ 1651(a) and 2255, and based on his assertion that he has been denied fundamental rights guaranteed by the Constitution.
He states the contested issues as:
I - The court should have severed the prosecution of the Defendant, Glass, and the prosecution of the Defendant, Johnson, and heard these cases separately.
II - It was error to allow impeachment of the Defendant, Glass, through use of prior convictions of said defendant.
III - The court erred in instructing the jury by use of Plaintiff's Instruction No. 4.
IV - It was error for the court to comment on evidence while instructing the jury in the manner in which the comments were made.
Appellant argues that his co-defendant, Emma Johnson, was in effect charged with actual possession and sale. Federal Narcotics Agent Anthony Johnson testified that he paid appellant $240 in currency, the serial numbers of which had been previously recorded*fn* , and that appellant then directed him to the apartment of Emma Johnson who was to give him the narcotics for which he paid appellant. Agent Johnson stated that he had secured a tinfoil package from Emma Johnson at the designated place, and then met with appellant who instructed him in the manner of diluting the narcotics for resale. There was evidence that the tinfoil package did contain narcotics. In her testimony Emma Johnson denied that Agent Johnson ever came to her apartment.
Appellant asserts that the charge against him was quite different from that against Emma Johnson. He argues that the sole charge against him was an affiliation with the transaction by directing the federal agents and special employee, Luther McDaniel, to Emma Johnson's apartment. He says that his directions were totally unnecessary because, according to Emma Johnson's testimony, Luther McDaniel already knew her and had borrowed money from her to purchase narcotics for himself on prior occasions.
In the course of cross-examination of Emma Johnson, information was elicited concerning her prior convictions for narcotics violations, for carrying a concealed weapon, and for public intoxication.
Defendant James Gilbert Glass, testified in his own behalf, directly denying any transaction with reference to narcotics. In the course of ...